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HOW CAN AN ESTATE MAINTAIN A WRONGFUL DEATH LAWSUIT ON A DECEDENT’S BEHALF? PART 2 OF 3

Executor Duties

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As discussed in the previous blog entry, the New York Estates, Powers and Trust Law (EPTL) establishes the statutory procedures that personal representatives, administrators and executors must follow when filing wrongful death lawsuits.

The EPTL provides mandatory statutes of limitations or time limits in which a personal representative can sue someone on a decedent’s behalf for wrongfully causing his death. Section 5-4.1 of the EPTL sets the statute of limitations at two years. Your personal representative or executor of your estate must file a wrongful death lawsuit within two years of death. However, the EPTL contains an exception to the two-year statute of limitations for the Sept. 11, 2001, terrorist stacks. In this case, a lawsuit alleging a wrongful death caused by the Sept. 11, 2001, terrorist attacks are subject to limitations period of two years and six months from the date of the decedent’s death.

If the decedent’s death was caused by a criminal action and not just a wrongful or negligent act or failure to act, the EPTL allows the personal representative or executor of the decedent’s estate to maintain a wrongful death lawsuit within one-year from the date the criminal action terminates or ends. Thus, if the state maintains a criminal action against an individual or company for your death, your personal representative, administrator or executor has another year from the date the criminal action terminates to commence a wrongful death proceeding.

Check out our blog tomorrow to read Part 3 of How Can an Estate Maintain a Wrongful Death Lawsuit on a Decedent’s Behalf?

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Unfortunately, quite often a decedent’s death does not occur because of natural causes. Natural causes include dying of old age, dying from a terminal illness or life-ending illness or from a preexisting medical condition. If you die from a wrongful act, a family member, spouse or your personal representative has the right to sue someone on your behalf. This blog series covers your personal representative’s right to sue on your estate’s behalf.

According to Section 5-4.1 of the New York Estates, Powers and Trusts Law or “EPTL,” a personal representative can maintain an action on the decedent’s behalf for a wrongful death claim. This Section of the EPTL allows a personal representative appointed in New York or in another state to sue another individual or company for the decedent’s wrongful death. A personal representative can maintain an action for monetary damages against someone else whose neglect, willful or wrongful act or intentional act caused your death. Typically, the standard of care is that the individual or business owed you a duty of care and but for its wrongful act, you would still be alive.

If you are the personal representative, executor or an administrator appointed to administer a decedent’s estate, you have a legal right to maintain a wrongful death lawsuit on the decedent’s behalf pursuant to the EPTL. To understand your legal rights, you can contact our office today.

Join our blog tomorrow to read Part 2 of How Can an Estate Maintain a Wrongful Death Lawsuit on a Decedent’s Behalf?

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Continuing the discussion from the first two blogs in this three-part blog series covering the important duties that executors have in New York, this last blog covers the executor’s final duties.

Under New York law, an executor can become personally liable for repaying creditors if they distribute a decedent’s assets before properly accounting for all of the decedent’s creditors. As an executor, you should make sure you receive a written agreement from each beneficiary promising to return any property if you are unable to repay creditors or other debts the decedent was responsible for paying. You must also prepare a written inventory or accounting of the earned assets within the estate and the distributions you’ve made during your administration of the decedent’s estate. However, beneficiaries can waive a formal judicial accounting as long as they are of legal age to make those waivers.

It may be in your best interest as an executor of a decedent’s estate to conduct a formal judicial accounting to obtain a formal discharge from the Surrogate’s Court. Your formal accounting will contain your total commissions earned under the decedent’s will or pursuant to statute unless you waived your commissions. Typically, your formal accounting should be done by your estate planning attorney.

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Continuing the discussion from the first blog of this three-part series, executors should understand their legal duties. An executor has very significant legal obligations. Under New York law, executors must inventory a decedent’s assets, pay debts and funeral costs, and pay taxes and administration costs. An executor may be liable for several years until they wind up the entire estate and receive a formal discharge of their fiduciary responsibilities. New York law requires executors to consider creditors’ claims within seven months of their formal appointment. The executor will also be responsible for making sure they file the decedent’s final personal tax return and the estate’s final tax return, if necessary.

After notifying potential creditors of the decedent’s death, paying taxes and other expenses, they must distribute the decedent’s assets to the named beneficiaries. If the decedent died without a valid Will, the personal representative or administrator is responsible for locating all of the decedent’s heirs and distributing their assets to their heirs pursuant to the state’s intestacy laws. The intestacy laws dictate which heirs are entitled to receive a decedent’s property if they died without a Will and the amount of each inheritance.

Check our blog tomorrow to read part 3 of New York Law and Executor’s Rights and Duties.

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An executor is the person or company responsible for administering a decedent’s Will. Sometimes referred to as a personal representative, the decedent has the discretion in appointing a trustworthy person or company to administer his or her last Will and Testament. If you die without a Will, a court will appoint one on your behalf.

Your executor is entitled to receive a reasonable compensation based on the gross value of your estate. However, they may waive their compensation or commissions. Typically, banks and other financial institutions that offer professional services as executors will require the statutory amount for commissions.

Your spouse can serve as your executor and remain a beneficiary under your Will. If you want to appoint your spouse as the executor of your estate, and your spouse is also the sole beneficiary, your spouse can perform their own distribution of your estate as the sole surviving beneficiary and surviving spouse before paying all of your creditors because of their continuing personal liability to remain responsible for paying your creditors. Furthermore, they may not have to conduct a formal judicial accounting as the sole beneficiary and executor of your estate.

Check in with us tomorrow to read Part 2 of New York Law and Executor’s Rights and Duties.

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When an individual dies, his or her financial life must be wound down. If that person died with a will or a living trust that was not fully funded, will administration is required. Another name for will administration is “probate.” You’ve probably heard that term.

During probate, the court must validate the will; then, will administration can begin.

Will administration (probate) is required for two main reasons.

  1. Change the name on the title of an asset from that of a decedent to a beneficiary.
  2. Pay creditors

In more detail, during will administration:

  1. The will is submitted to court for validation.
  2. Creditors, beneficiaries, and heirs are notified of the death.
  3. Assets are gathered, inventoried, appraised, and managed.
  4. Legitimate creditor claims are paid.
  5. All taxes are paid.
  6. Assets are distributed to beneficiaries.

The personal representative (i.e. executor) is in charge of getting all this done. It’s wise to choose an executor who will properly manage the duties. Characteristics of the ideal executor include fiscal responsibility, good time management, good record-keeping, ability to communicate well with beneficiaries and professional advisors such as the financial advisor, CPA, and estate planning attorney.

Be sure to name contingent executors as well; in case your primary executive is unable or unwilling to serve when the time comes. Otherwise, the court will intervene and appoint a personal administrator (i.e. administrator) of its choice, not yours.

If you have questions about will administration, be sure to consult a qualified estate planning attorney to get good advice about your individual situation.

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When creating your will, you must appoint an executor to handle your estate’s affairs during the probate process. This person will be helping you and your loved ones in a number of ways. Are you unsure of the duties that your executor will face during the probate process?

Take a look at some of the information below to learn more. If you have any questions about probate or your executor’s duties, meet with an estate planning – probate attorney.

  • Your executor will be responsible for starting the probate process. He or she will need to submit documentation to the probate court in order to start the proceedings.
  • Your executor must keep in contact with beneficiaries and alert them of their inheritances. He or she will also have to notify creditors of your death.
  • Your executor will need to locate all of your assets. It’s a good idea to provide some instruction to your executor ahead of time. He or she will also have to carefully manage these assets during the process.
  • Your executor must attend all court appearances and follow the instructions that are outlined by the probate judge. Your executor will be responsible for continuously reporting to the court.
  • Your executor must pay all expenses. This includes past debts as well as estate expenses such as attorney fees and court costs.
  • Your executor must file and pay appropriate taxes. He or she may need to get the help of a professional to ensure that the taxes are done correctly.
  • Your executor must distribute the assets to beneficiaries. He or she will follow the instructions in the will and will be supervised by the probate court.

When choosing an executor for your estate, it’s important to understand the duties as well as the probate process. You want to make sure that your executor is able to handle all of the duties so that your estate is handled with care.

If you have any questions about choosing an executor or understanding the probate process, consult with a qualified estate planning attorney.